Voiceless Animal Law Talk: Episode 2 – Animal Law and Policy Reform 2019 PODCAST TRANSCRIPT This engaging and informative educational podcast discusses animal law and policy reform in Australia, with a diverse range of animal law experts and animal protection advocates. AL LA NIM W T A A S LK S E L E C I O V the Animal Protection Education Series podcast by Voiceless Interviewees: Nichola Donovan, President of Lawyers for Animals. Daniel Cung, Chair of the NSW Young Lawyers Animal Law Committee. Ana Smietanka, Co-Founder of the Animal Law Institute. Dr Jed Goodfellow, Senior Policy Officer at RSPCA Australia. Georgie Purcell, Vice-President of Oscar’s Law. The Hon. Mark Pearson, Member of the Legislative Shatha Hamade, Legal Counsel at Animals Australia. Council of NSW (Animal Justice Party). Tara Ward, Co-Founder of the Animal Defenders Office. Laurie Levy, Founder of the Coalition Against Duck Shooting. Nicky Neville-Jones, Chair of the Law Institute of Victoria’s Animal Welfare Committee. voiceless.org.au Introduction Voiceless Animal Law Talk – a podcast by Voiceless, the animal protection institute. Dr Meg Good Welcome to the second episode of Voiceless Animal Law Talk. I’m Meg and I’m the Animal Law & Education Manager at Voiceless. In this episode, we’ll be discussing animal law and policy reform in Australia, and trying to identify why achieving law reform in this context can be so challenging. Through discussions with a diverse range of animal law experts and animal protection advocates, we’ll be exploring some of the major successes in the field, and possibilities for further reform. Whilst some advocates and lawyers campaign solely for incremental law reform developments, some argue that there is also a need to advocate for reform to the fundamental legal status of animals in Australia. We spoke to President of Lawyers for Animals, Nichola Donovan, about this idea. LFA has been operating since 2005, campaigning for various reforms, including recognising the sentience of animals under the law, and redefining their legal status. We asked Nichola for her views on the first step that could be taken towards this reform. The first is probably to change the notion of legal personhood, and to in fact codify that into a Nichola Donovan statute. We suggest perhaps even changing the language around this, because we think that it is too much of a leap, perhaps conceptual leap, to consider animals like fish, which do have sentience, and do feel pain and suffering – to consider them as legal persons. And since also corporations, and churches, and other things, are already given legal personhood, this is also a bit conceptually confusing for the average layperson. We think it might be time to change the language to something like ‘legal entity’. To grant legal entity is to give an opportunity to these, not only beings, but also bodies like corporations, to access the courts and be recognised as having some legal standing in court. We also discussed the idea of recognising animal sentience and changing the legal Dr Meg Good status of animals in Australia with Animal Law Institute Co-Founder, Ana Smietanka. The difficulty we have in Australia is that we are a legislated country. And so, if the legislation Ana Smietanka doesn’t recognise sentience for animals, we have no room under the doctrines of precedent and legislative interpretation to argue for that. We’ve come from the perspective of instead of trying to lobby for changes in laws, or make legal arguments that won’t stick, we use the current framework, which is deficient, to our advantage. So, the fact that animals are property, we’ve been using to our advantage by arguing that the consumer guarantees extend to reasonably foreseeable vet expenses. As just touched on by Ana, the Animal Law Institute has adopted a novel and creative way Dr Meg Good of approaching reform in this area, working within the confines of the current property status of animals. What we do focus on is choosing an area of the law that currently we can use that doesn’t Ana Smietanka protect animals, and that might not be designed to protect animals, and using it to achieve a positive animal welfare outcome. So, for example, when people think of animal law in Australia, traditionally they think about animal protection law - animal cruelty and the RSPCA. The legal reality in Australia is that ALI (Animal Law Institute), for example, can’t enforce that law, and I’ll call that animal welfare law. But that body of law is really the only law that’s specific to animals in Australia. That’s enforced by governments and charities, and we have no standing under the law to enforce that. Voiceless Animal Law Talk: Episode 2 – Animal Law and Policy Reform | 2 In comparison, what we do is, what we’re currently doing with puppy farms, is to use an area of the law, like the consumer law, which regulates the provision of goods and services, and apply that to dogs, cats, and any kind of domestic animal that you buy. And under our consumer law work, what we’re currently doing is using the consumer guarantees, which are statutory guarantees implied into every contract of sale, which provide that any good that you buy has to be of an acceptable quality, for example that’s one of the guarantees, and applying that to puppy farms. Under the consumer law in Australia, we’ve used the fact that animals are property to our benefit; because they are property, we can rely on the consumer law. And under the consumer law, if any consumer buys a good, and then there’s a defect in that good, and as a result of that defect, they incur consequential loss, you can claim that loss as against the person that created the good. So, the example that I would give, is if I bought an iPhone that was broken, and I had to go and return it, and it cost me a five-dollar bus ticket, I could not only ask for a new iPhone, but for that five-dollar bus ticket; because I’ve incurred that loss because of the fault. In terms of dogs and cats, what we’ve been arguing is that when an animal is sold with, for example, hip dysplasia, or parvovirus, that animal is obviously not of an acceptable quality; because when you buy a cat or dog, you don’t expect them to have such significant illnesses so early in their life. We have said that it’s reasonably foreseeable, with sentient consumer goods, which is kind of a funny phrase to use, that people will not just want a refund or an exchange, but they will want to incur vet fees, and then get those vet fees repaid. Most animal lawyers in Australia work within the current system to achieve change, whilst Dr Meg Good acknowledging the significant deficiencies inherent within that system. Sometimes this pragmatic approach is criticised on the grounds of not being reformist enough, and for being what some refer to as ‘too welfarist’. We spoke to the Vice-President of Oscar’s Law, Georgie Purcell, about this perception. Oscar’s Law was formed to campaign for the abolishment of companion animal factory farming in Australia, especially ‘puppy farms’. A word that comes up a lot in this space is that it’s a ‘welfarist’ change, and I just think that any Georgie Purcell change for animals that can happen, any law reform for animals, is something that we should absolutely celebrate. We’re not going to relieve animals from cruelty overnight, and these incremental changes create that ongoing discussion. That narrative that animals have their own experiences, and their own lives, and it really gives them that autonomy that they deserve. And it can be frustrating when people don’t understand that these changes – especially law reform, is hard. It’s complicated, and if we wrote into a bill, “puppy farming is banned”, it was going to be a lot harder to implement. It can force industries underground. It can just make things a lot harder. Whereas, we know that people with ten dogs, it’s not going to be worth it for them, they’re probably going to stop it. Most puppy farmers have had time to close down. That was another really difficult thing, is that the law passed in 2017, and then we said: “Yay, the law has passed, and come 2020 these laws will be in effect”, and people were so upset that it was going to take two and a half years. And it would have been terrible for dogs for them to have to shut down overnight. That was just something that we had to accept. That depopulating is going to mean that dogs get surrendered. It means that puppy farms aren’t going to be restocked with new breeding dogs when they retire them, and it means that there’s not going to be a whole heap of dogs out there that could have been re-homed, and had lives knocked over the head because of a sudden change in industry. Law reform, for a lot of people, it doesn’t have that immediate outcome like people want and feel that they need. But we were really, really happy with the way that this went and we think it’s the best possible way that puppy farms can be controlled in this state. But going back to what I said earlier on about it not being a federal issue, is that we were never quiet about the fact that these laws will not work until we have national consistency.